Research On The Legal Issues Of Maritime Performing Party

The thesis is based on a class of participants in United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (hereinafter referred to as the "Rotterdam Rules") for study. The class of participants referred above is Maritime Performing Party."Rotterdam Rules" with its characteristics of advanced nature of the legislation, will attract more and more countries to join in. Especially if it won national recognition of the main shipping and put it into effect, international legislation of international transport of goods will usher in a new era. How to reference and absorb the reasonable components of "Rotterdam rules" to improve China's maritime legislation, is the reality of our country we faced with. Therefore, research the maritime performing party detailedly has important theoretical and practical significance.The author study the thesis with historical analysis, comparative analysis and case analysis. By studying maritime performing party and other Related legal issues of the Rotterdam Rules, combining with shortcomings in China's maritime legislation, the author put forward the specific suggestion on building Maritime Performing Party system for China.In addition to the introduction and conclusion, this paper is divided into five parts.The first part is the definition of the maritime performing party. Maritime performing party concept development has experienced two stages, respectively is the emergence of the performing party concept and the formation of maritime performing party concept. Maritime performing party means a performing party to the extent that it performs or undertakes to perform any of the carrier's obligations during the period between the arrival of the goods at the port of loading of a ship and their departure from the port of discharge of a ship. Maritime performing party is different from that of the actual carrier, the port operators and multimodal shipping carrier. It has four characteristics:the maritime performing party commissioned by the carrier; engaged in the activities and obligations of the carrier; responsible during the period from the arrival of the goods at the port of loading beyond the goods leave the port of discharge; the carrier controlling the maritime performing party through a contractual relationship.The second part analyzes the rights and obligations of the maritime performing party. According to the rights and obligations of the maritime performing party from the provisions of the "Rotterdam Rules", or from a contract entered into by the carrier and shipper, the rights and obligations of the maritime performing party is divided into statutory rights and obligations and contractual rights and obligations.Due to contractual rights and obligation depending on the contract which has the uncertainty, the paper focuses on the maritime performing party's statutory rights and obligations. The rights of the maritime performing party are primarily rights of defense and limit of liability rights. Maritime performing party's obligations are primarily receive, load, handle, stow, carry, keep, care for, unload and deliver the goods, and the obligations which are specific obligations applicable to the voyage by seaThe third part deals with the responsibility period, the responsibility principle, and the burden of proof of the maritime performing party, and the maritime performing party's joint and several liability with the carrier. The responsibility period of maritime performing party begins with the arrival of the goods at the port of loading, and ends at the goods leaving the port of discharge. Maritime performing party applies to the principle of presumption of fault liability. In the distribution of the burden of proof between the maritime performing party and the claimant, there are three presumption. The three presumptions are respectively, presumption of fault in the management of goods, presumption of no fault in the legal disclaimer, and presumption of fault in the ship's unseaworthy. The carrier and maritime performing party should bear joint and several liability under some situation, while complying with the provisions of the limits of liability. The fourth part points out the theoretical and practical impact to establish the concept of "maritime performing party". The establishment of" maritime performing party" concept's theory influence performance in breaking the traditional relativity principle of the contract bound and enrich the international transportation legislation. The establishment of" maritime performing party" concept's practice effects are mainly expanded Himalaya terms of the applicable range of subject, determine the port operator's legal status and responsibilities also increases the probability of port operators sued, increase the liability of the carrier.The fifth part discusses the necessity for our country to build a maritime performing party system and specific strategies. In order to better adapt to the development of the modern transport industry, and to compensate for the defects existing in China's legal system, China have to build our own legal system of maritime performing party. To build our own legal system of maritime performing party, we must to determine the validity of the Himalaya clause in a legal perspective, but also continue to break through the traditional bound in law theory. Consider the requirements of stability and continuity of the legal system, as well as the actual situation in our country, the author suggests, we can take a selective absorption of the rational composition of the maritime performing party system to build the legal system of China's maritime performing party. We can make some minor revision on the" maritime law", when the time is ripe to make big changes.